Baughan v. Brown
| Decision Date | 07 February 1890 |
| Parties | Baughan et al. v. Brown. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Delaware county; O. J. Lotz, Judge.
Action by William A. Brown, administrator of John Baughan, against William Baughan and James Baughan. Judgment was rendered for plaintiff, and defendants appealed.
T. B. Redding and Gregory & Silverburg, for appellants. Brown & Brown, for appellee.
This cause is in this court for the second time. The issues as joined in the circuit court are fully set forth in the case as reported in Baughan v. Baughan, 114 Ind. 73, 15 N. E. Rep. 466, 17 N. E. Rep. 181. While the appeal was pending in this court, the appellee, John Baughan, died intestate; and when the cause was returned to the court below the present appellee, William A. Brown, as administrator of his estate, was substituted as plaintiff. The cause was again tried upon the issues as formed during the life-time of John Baughan, resulting in a verdict and judgment for the appellee. The questions involved in this appeal relate to the action of the circuit court in overruling the appellants' motion for a new trial.
It is contended by the appellants that the verdict of the jury is not supported by the evidence, and is contrary to law. The evidence on behalf of the appellee consisted of a written contract executed between John Baughan, the deceased, and William Baughan, the appellant, with the other appellant, James Baughan, as surety, by the terms of which the said William Baughan agreed with the deceased, in consideration of $500 and the household goods owned by him, to take care of, maintain, and support the deceased during his life-time, in a good, careful manner, and after his death to give him a decent burial, and pay the expenses thereof. It was further stipulated that, in the event deceased should own any other property at the time of his death, the appellant William Baughan should have such property in addition to the $500 and the household goods. The evidence tends to show that the deceased, in discharge of his obligation to pay the $500 provided for in the contract, assigned and delivered to the wife of the appellant two promissory notes, amounting to $500, with some interest thereon, which the appellee negotiated and sold to a bank, and realized therefrom $460 to $480. The evidence further tends to prove that, after the deceased had remained with the appellant William Baughan something over three years, the wife of the said William refused to keep him longer, when he was removed to the house of one Melissa Miller, where he died during the pendency of this suit. The evidence on behalf of the appellants tended to prove that the contract between the parties had by mutual agreement been rescinded and abandoned, and that the deceased had made a new contract with the wife of the appellant William Baughan for his support, under the terms of which the two notes, amounting to $500, were assigned to her; and upon this theory the defense in the case was made.
The evidence of the deceased was taken on a former trial of this cause, and was read in evidence on the last trial, in which he denied that the contract had been rescinded. There are also some circumstances in the case in conflict with the theory of the defense, among which is the fact that the contract above referred to was left with one Scott, by the mutual agreement of the parties, for safe-keeping, and was still there, uncalled for, at the time of the commencement of this suit. All this evidence, as well as the circumstances attending the case, was doubtless considered, and duly weighed, by the jury. It was their especial province to determine what weight it should have in arriving at their verdict. We cannot say that their verdict is wholly unsupported by the evidence. Where there is some evidence tending to support the verdict, or the finding of the court, this court will not reverse the judgment on account of overruling the motion for a new trial, assigning as cause that the verdict or finding is not supported by the evidence.
On the trial of the cause the court permitted the appellee to read in evidence the two notes assigned by the deceased and delivered to the wife of appellant William Baughan, and the...
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